March 17, 2010

Statutory Limits on ER Liability Upheld by 4-3 Majority

In a split 4-to-3 vote, the Supreme Court of Georgia has upheld the state’s emergency room statute as constitutional. Passed as part of the General Assembly’s 2005 “tort reform” legislation, the ER Statute states that certain emergency health care providers cannot be held liable unless there is “clear and convincing evidence” they were grossly negligent.

In today’s opinion, written by Presiding Justice George Carley (data), the majority finds that the statute is a “general law,” as opposed to a “special law,” and therefore passes constitutional muster. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.

The constitutional challenge of the statute stems from a lawsuit filed in Muscogee County by Carol and Robert Gliemmo. According to briefs filed in the case, the night of April 22, 2007, Carol Gliemmo felt a sudden “snapping in her head.” Her husband called an ambulance, which took her to St. Francis Hospital in Columbus where Dr. Mark Cousineau treated her in the emergency room. Cousineau diagnosed Gliemmo with “hypertensive urgency,” or greatly increased blood pressure. The Gliemmos later claimed the physician blamed her headache on “stress” and high blood pressure, prescribed Valium and sent her home. The hospital and physician claimed they gave her a beta-blocker to treat the high blood pressure and performed an EKG and blood tests. After her blood pressure went down and she told nurses she felt “much better,” they released her. Two days later, her family practitioner ordered a CT scan, which revealed a brain hemorrhage that left her paralyzed.

Gliemmo and her husband sued Cousineau, St. Francis and the physician’s employer, alleging professional negligence for failing to order a CT scan that would have detected her brain aneurysm. The defendants filed a motion to dismiss the case on the ground that the Gliemmos failed to establish that the emergency medical providers had been “grossly negligent,” and therefore they were not liable under Official Code of Georgia § 51-1-29.5 (c) – the state’s ER Statute. In response, the Gliemmos challenged the ER Statute as unconstitutional, arguing the statute is a special law because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The trial court judge rejected their challenge but asked for the state Supreme Court’s guidance before proceeding to trial.

“This Court has found a statute to be a special law where it .. deals with a limited activity in a specific industry during a limited time frame,” the opinion states. Georgia’s ER Statute “is not a special law affecting only a limited activity in a specific industry during a limited time frame. Rather…it is a general law because it operates uniformly upon all health care liability claims arising from emergency medical care as provided in the statute.”

The majority points out the General Assembly passed the legislation in response to the growing difficulty in finding and affording medical malpractice insurance. “Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes,” the majority opinion states. “Furthermore, it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals.” Joining the majority are Justices P. Harris Hines, Harold Melton and David Nahmias.

Justice Robert Benham (data) writes in a dissent that “the 2005 law is a special law that is unconstitutional on two grounds: the General Assembly previously enacted a general law concerning the standard of care to which medical personnel must adhere to avoid liability; and the classification of those affected by the new legislation is unreasonable.” Since 1863, Georgia law has required physicians to practice their profession with “a reasonable degree of care and skill,” and any injury resulting from a failure to do so can bring a lawsuit. Here, “the 2005 legislation affects a limited class of health-care providers, with that limited class defined by what health care they provide and where they provide it,” the dissent says. “Those within the limited class are protected from liability by a lower standard of care and a higher burden of proof…”